Thursday, August 6, 2015

TU's preliminary comment on the 'antisocial behaviour' amendment bill

The
Tenants’ Union of New South Wales holds strong concerns about the Residential Tenancies and Housing
Legislation Amendment (Public Housing – Antisocial Behaviour) Bill 2015.The bill, which will make significant
changes to certain processes for ending social housing tenancies, among other
things, has been introduced into the NSW Legislative Assembly without
consultation. The Tenants’ Union takes this opportunity to issue a preliminary
comment in relation to the bill. We will produce a substantial comment
addressing the bill in detail at a later time.

The
bill intends to ‘amend the Residential
Tenancies Act 2010 and the Housing
Act 2001 to facilitate the termination of public housing tenancies for
antisocial behaviour and for other purposes’. The primary means by which it
will achieve this is by removing the New South Wales Civil and Administrative
Tribunal’s ability to properly act as the independent dispute resolution forum in
cases involving social housing tenancies.

It
will do this in two ways:

By
removing the Tribunal’s discretion regarding termination of tenancy agreements
in certain cases, in circumstances where discretion is necessary to avoid
injustice.

By
restricting the Tribunal’s ability to consider evidence in certain matters,
other than evidence tendered in support of applications by social housing
landlords.

If
passed, the bill will render the Tribunal incapable of delivering just outcomes
in many cases. Rather than consider and determine social housing tenancy disputes
as the independent arbiter, the Tribunal will be reduced to an administrative
tool for social housing landlords.

Removing the Tribunal's discretion

The
bill will mandate the immediate termination of social housing tenancies in
cases where various criminal offences can be established at the civil standard
of proof. But termination is not a just outcome in all circumstances. The
Tribunal’s ability to decline to make termination orders is an important
safeguard. Removing this ability will lead to injustice.

Under
current tenancy law landlords can apply to the Tribunal for orders terminating
a tenancy on the ground that the premises have been used for an illegal purpose.
Where this is proved, the Tribunal may terminate the tenancy or, at its
discretion, decline to terminate, considering the circumstances of the case. It
is especially important and appropriate that the Tribunal have discretion in
the following circumstances:

Where a person other
than the tenant has committed the offence.

Where other
household members not involved in the offence would also be evicted.

Where criminal
justice outcomes allow for the rehabilitation of the offender in their home.

Where criminal
justice outcomes have already been applied, and justice served.

Social
housing landlords are known to have taken termination proceedings in all such
circumstances. Even so, the Tribunal’s discretion is never applied without
rigorous consideration of all relevant factors.

Restricting the Tribunal's ability to consider evidence

The
bill will allow social housing landlords to certify that certain evidence is
‘conclusive proof’ of relevant matters. It will do this in relation to
applications for termination where a tenant has accrued three ‘strikes’ against
them, and for compensation for the cost of repairs to damaged property.

In
relation to the accrual of three ‘strikes’, a certificate from a social housing
landlord will be conclusive proof of an alleged breach of a tenancy agreement,
as long as the Tribunal is satisfied a ‘strike notice’ was issued to the tenant
in relation to the alleged breach and the tenant did not raise an objection to
the notice within fourteen days of receiving it. This creates an administrative
burden that will be particularly onerous for tenants who have low literacy
skills, limited support networks, poor mental health, or are otherwise hindered
from responding to a ‘strike’ notice within the required time. Tenants who fail
to meet this burden will be limited in how they may respond to ‘certified’ evidence
of the landlord, and this could lead to the Tribunal being denied the
opportunity to consider all relevant matters.

In
relation to the cost of repairs to damaged property, a social housing landlord
may determine the ‘reasonable cost’ of work by producing a certificate that the
Tribunal must take as conclusive proof. This assumes that social housing
landlords’ are charged commercially competitive rates by their repairs and
maintenance contractors, but this is not always the case. In fact, the NSW Land
and Housing Corporation has identified this as an issue, and intends to change
the pricing structures within its contracts to address it. But the bill
provides no restrictions or limitations to this provision, or any indication as
to who will be delegated to produce such certificates. It will be open to
misuse.

No comments:

Post a Comment

Please keep your comments PC - that is, polite and civilised. Comments may be removed at the discretion of the blog administrator; no correspondence will be entered into. Comments that are abusive of individual persons, or are sexist, racist or otherwise offensive will be removed, so don’t bother leaving them.

Make Renting Fair in NSW

Tenants' Union of NSW

Like the iconic piece of share-house furniture after which it is named, the Brown Couch is a place where tenants can catch up on the latest news, be cheaply entertained, and commune with their fellow tenants.

House rules

All posts on this blog remain the copyright of the Tenants’ Union of NSW, unless otherwise indicated. Copyright posts may be reproduced for personal and not-for-profit purposes, with appropriate acknowledgement. Journalists seeking comment should contact the Tenants’ Union of NSW directly.

You can leave comments on this blog. Please keep all comments 'PC' - that is, polite and civilised. Comments may be removed at the discretion of the blog administrator; no correspondence will be entered into. Just because a comment appears on this blog does not mean the Tenants' Union of NSW agrees with it.